This Petition for Review from the December 14, 1998 Ruling: Admissibility of Claimant’s Hospital Records by the Commissioner acting for the Sixth District was heard June 18, 1999 before a Compensation Review Board panel consisting of Commissioners John A. Mastropietro, Stephen B. Delaney and Ernie R. Walker.1

OPINION

JOHN A. MASTROPIETRO, COMMISSIONER. The respondent and the claimant have both petitioned for review from the December 14, 1998 Ruling: Admissibility of Claimant’s Hospital Records by the Commissioner acting for the Sixth District. The respondent questions the law and procedure that the trier applied to determine the admissibility of the claimant’s psychiatric records from a mid-1960’s hospitalization, while the claimant argues that a previous Finding and Award in this matter should be reinstated in light of the commissioner’s decision below.

In that previous Finding and Award, dated October 8, 1996, the trier found that the claimant’s accepted March 29, 1977 left knee injury resulted in a 25% loss of knee function as per an approved voluntary agreement. Along with the serious knee problems that the claimant had following the injury, he began experiencing psychiatric symptoms as early as March 1978. By 1996, he had been hospitalized five times for depression secondary to injury and compensation issues, suicidal ideation, and post-traumatic stress disorder, and had been treating with Dr. Noonan since 1983. The respondent began to deny the compensability of the claimant’s psychiatric treatment after June 18, 1992.

Dr. Noonan was of the opinion that the claimant’s mental condition was linked to his 1977 work injury. However, the claimant had a prior psychiatric history that was noted by Dr. Borden, who twice examined the claimant at the respondent’s request. Dr. Borden reported that the claimant grew up with an abusive father, and that he had long-standing psychiatric problems. In fact, he was hospitalized for a psychiatric ailment in 1964 after his wife left him, and was in the hospital when his mother died in 1965—a loss from which the doctor believes he has never recovered. Dr. Borden opined that the claimant’s complicated psychiatric problems predated 1977, and were compounded in recent years by illnesses and deaths in his family. He did not think that the claimant’s mental health problems were caused by his 1977 compensable knee injury.

The commissioner found that Dr. Borden’s opinion was less persuasive than Dr. Noonan’s, and concluded that the psychiatric injury was causally attributable to the knee injury. He deemed the respondent to be estopped from denying compensability because it had made extensive payments to several medical providers for treatment of the psychiatric injury. The commissioner entered an order directing the respondent to pay all outstanding bills, compensation benefits and COLAs, as well as attorney’s fees for unreasonable contest. The respondent then appealed that decision to this board, which reversed and remanded the case to the trier on one specific ground. Vetre v. State of Connecticut/DCYS, 3443 CRB-6-96-10 (Jan. 16, 1998) (“ Vetre I”). That holding evolved as follows.

During the second of four formal hearings, the respondent had requested that the claimant provide a medical release for hospital records generated between 1964 and 1967. The respondent professed to be entitled to these documents, as the claimant had put his own psychiatric condition and its etiology at issue. An objection was made on the ground of relevance, for the records in question pertained to symptoms that had occurred long before 1977. The respondent then attempted to secure those records by filing a subpoena duces tecum. Despite the opinions of two psychiatrists who declined to relate the claimant’s current mental problems to his 1977 knee injury, the trial commissioner issued a decision stating that the interests of justice did not require the production of the subpoenaed records given their remoteness in time, the history of the claim, and the other medical opinions that addressed the etiology of the claimant’s disability.

On review, this board discussed the interplay of § 52-146e(a), which makes patient-psychiatrist communications privileged, § 52-146f(5), which allows disclosure of such discourses “in a civil proceeding in which the patient introduces his mental condition as an element of his claim or defense . . . and the court or judge finds that it is more important to the interest of justice that the communications be disclosed than that the relationship between patient and psychiatrist be protected,” and § 31-298, which allows the commissioner to exceed the limitations of statutory and common-law evidentiary rules in conducting his inquiry under the Workers’ Compensation Act. We reasoned that the term “civil proceeding” includes a workers’ compensation case, and held that the balancing test of § 52-146f(5) ought to be applied to this proceeding. As the trial commissioner had made his decision without physically reviewing the subpoenaed records, we remanded the matter so that he could conduct an in camera inspection of the records to determine their relevance. The inspection was accordingly conducted pursuant to our instructions, and the trier again ruled the evidence too remote in time to be relevant. Both parties subsequently filed appeals from that ruling.

We address the respondent’s petition for review first. Part of its argument consists of an attempt to persuade this board not to apply § 52-146d to workers’ compensation proceedings, while the remainder levies an attack on the procedure adopted by the trial commissioner in conducting his in camera inspection of the claimant’s psychiatric records, along with the substance of his decision to exclude them.

This board has already broached the former issue in Vetre I, where we held that both the privilege created by § 52-146e(a)2 and the exception in § 52-146f(5)3 are applicable to workers’ compensation proceedings. “We interpret the term ‘civil proceedings’ to include the proceedings of the Workers’ Compensation Commission . . . . [T]he maintenance of an action under the Workers’ Compensation Act is a direct substitute for the potential civil liability that is removed by § 31-284 C.G.S. . . . Thus, the trier has the discretion to admit psychiatric records where the claimant raises his mental condition as part of a claim and where the trier finds that the interests of justice favor the disclosure of those communications.” Id. Surely, an important policy underlies § 31-298’s relaxation of the common-law and statutory rules of evidence: the desire to simplify the procedures surrounding workers’ compensation hearings to promote the speedy resolution of claims and the accessibility of this forum to the laity. Accordingly, greater emphasis is placed upon the trier’s discretion to determine the relevance of records, with correspondingly less focus upon rules and theories of law that profess to arrange by category what items do and do not constitute relevant evidence. See Leary v. Stamford, 3280 CRB-7-96-3 (Sept. 17, 1997) (trier entitled to refuse admission of blood pressure reading into evidence on ground that the offered record was incomplete); Yablonski v. Danbury Hospital, 14 Conn. Workers’ Comp. Rev. Op. 212, 1968 CRB-7-94-2 (July 27, 1995) (trier had discretion to admit reports of treating neuropsychologist despite § 52-174(b)’s failure to include such reports as admissible “business entry” exceptions to hearsay rule), affirmed, 43 Conn. App. 912 (1996) (per curiam).

We would not be undermining that policy if we were to honor the specific right of privacy statutorily granted by § 52-146e. Section 52-146f(5) allows psychiatric records to be admitted without a claimant’s consent if the actual relevance of those records outweighs the value of confidentiality in the patient-psychiatrist relationship. On the other hand, the harm we would cause by ignoring this statutory protection is tangible. Claimants would then have to choose between refraining from seeking benefits for psychiatric claims and allowing their employers unfettered access to all past psychiatric records, whether relevant to their disabilities or not. Protecting the privacy of one’s own mind is manifestly crucial to human dignity. Candidates for psychiatric treatment must feel secure that this privacy will not be casually compromised, or they will be reluctant to seek the help they need. State v. White, 169 Conn. 223, 234, cert. denied, 423 U.S. 1025 (1975). Remaining faithful to that idea, we reaffirm the applicability of the patient-psychiatrist privilege to the workers’ compensation forum.

In Vetre I, this board instructed the trial commissioner to conduct “an in camera inspection” of the claimant’s psychiatric records in order to assess their relevance to the instant case. The trier heeded that request, working alone as he unsealed and reviewed the records from Connecticut Valley Hospital. He decided that they were not relevant, re-sealed the records, and ruled that they were inadmissible as evidence. The respondent argues that these steps were insufficient, because neither a medical expert nor counsel was permitted to participate in the commissioner’s review of the records, thus depriving the respondent of “a meaningful opportunity to argue for inclusion of the records in the process,” and providing no transcript for review. Brief, 9. We are urged to construe our directive in Vetre I “in a manner consistent with case law and principles,” and with “higher court decisions interpreting the statute invoked by the claimant to prevent the State from reviewing his prior records concerning mental illness.” Id., 8-9.

Surprisingly, our research has revealed numerous “higher court decisions” that, though relevant, somehow eluded the scrutiny of both parties during the appellate briefing stage. In each of these cases, the in camera review of psychiatric records pursuant to § 52-146f was a secluded judicial affair that did not involve the party seeking discovery. See, e.g., State v. D’Ambrosio, 212 Conn. 50, 58-62 (1989); State v. Pierson, 201 Conn. 211, 226-28 (1986); State v. Esposito, 192 Conn. 166, 176-80 (1984); In re Christopher G., 20 Conn. App. 101 (1989); State v. Boutwell, 18 Conn. App. 273 (1989). An illustrative example of these opinions is State v. Storlazzi, 191 Conn. 453 (1983), a sexual assault case in which the defendant tried to subpoena the records of his teenage victim’s recent psychiatric evaluations, whereupon the trial court “ordered the records sealed, reviewed them in camera and denied the defendant access to them.” Id., 455.

In Storlazzi, the defendant argued to the Supreme Court that he should have been granted access to the records in question, by virtue of his sixth amendment right to confrontation and his due process right to exculpatory material. The Court disagreed. It outlined the strong policy reasons favoring the confidentiality of such files—the frequent presence of sensitive, private and irrelevant material concerning both a witness and her family, and the societal interest in encouraging emotionally distressed people to seek counseling—and stated that an in camera inspection by the trial judge is advisable as a safeguard of that interest. Storlazzi, supra, 458-59. “As in the case of admissibility of such records, access to records bearing on ‘the mental unsoundness of a witness . . .’ should be granted to the defendant. And as in the case of admissibility of such records, however, access to ‘such [records] must be left to the discretion of the trial court which is better able to assess the probative value of such evidence as it related to the particular case before it, . . .’ and to weigh that value against the interest in confidentiality of the records.” Id., 459 (internal citations omitted).

The Court then refuted the defendant’s argument that the trial judge necessarily made an inaccurate in camera inspection of the records because of his unfamiliarity with the theory of defense, and that he should have interpreted any inconsistency between the records and the victim’s trial testimony as an exonerative fact justifying disclosure of those records to the defendant. Though the trial court has a duty to disclose to the defense any exculpatory information that it discovers, not every inconsistency is material in the constitutional sense. Id., 461. “The test of materiality is whether the omitted evidence, evaluated in the context of the entire record, creates a reasonable doubt that did not otherwise exist.” Id., 461-62, citing State v. Bember¸ 183 Conn. 394, 404 (1981). In Storlazzi, the case against the defendant was very strong; among other things, when confronted by police officers at his home, he had escorted them to a bureau drawer containing photographs of himself and the 13-year-old victim having sexual relations, along with a supply of her birth control pills. Id., 462. With such plentiful evidence against the defendant, the victim’s testimony did not appear integral to his conviction. Thus, the Court held that his due process rights had not been violated by the trial court’s refusal to grant him access to the complainant’s psychiatric records.

We do not believe that the trial commissioner erred below by emulating the solitary method of in camera review that has been used routinely by our Superior Court judges in cases such as Storlazzi. There is no reason why the patient-psychiatrist privilege ought to be considered less valuable during Chapter 568 proceedings than it is in any other case. Defense counsel may examine protected psychiatric records only after the trier of fact has ascertained that there is relevant material within. Id., 459. Any prior access to the records by an opposing party would vitiate the integrity and effect of the patient-psychiatrist privilege. In re Christopher G., supra, 110 n.6.

As for the use of an expert to assist the trier of fact with an in camera inspection, nothing in the cases appears to prohibit it. Likewise, it is not mandated by either law or logic in any particular situation. We are thus left to discern our own approach to the idea. Given the attendant privacy concerns, a trier of fact should obviously take care to expose privileged records to as few outside eyes as possible. Still, he or she should not feel categorically barred from seeking the aid of an appointed expert—say, a § 31-294f examiner—if the trier is of the opinion that the medical significance of the information in the records is beyond his or her ken. Such a decision would necessarily be left to the trier of fact, and would be almost completely discretionary. Without the possibility of a hearing, no record can be created revealing the trier’s thought processes, or the reasons for his or her conclusions regarding the admissibility of a claimant’s records.

This is as it must be. Nevertheless, some degree of appellate review of the merits of this evidentiary ruling is still feasible, albeit without the active participation of counsel. Id. The rule in other forums, which we adopt here, is that if “an in camera inspection . . . , in the opinion of the trial judge, does not disclose relevant material, then the resealed record is to be made available for inspection on appellate review.” Esposito, supra, 180. “[On appeal], our threshold of review is limited to examining whether the trial court abused its discretion in failing to disclose the complainant’s records.” In re Christopher G., supra, 110 n.5. We have examined the sealed records that Connecticut Valley Hospital sent to the trial commissioner, and have discovered no information within that would clearly be relevant to the present workers’ compensation claim. The patient-psychiatrist privilege prevents us from discussing particular facets of the hospital’s file, of course, but we are comfortable in saying that the trier did not abuse his discretion here, either in the procedure he followed in making his determination, or in his decision to shield these records from discovery.

The claimant has also filed a petition for review in this case, based on the trial commissioner’s refusal to reinstate his October 8, 1996 Finding and Award following his decision to exclude the claimant’s disputed psychiatric records. The claimant argues that said ruling did not terminate the proceedings, and that it was incumbent on the trier to bring the claim to finality by continuing the hearing and either reinstating or reiterating his previous award. At the December 14, 1998 formal hearing, the trier briefly discussed this issue. In his analysis, he was bound by the remand directive of this board in Vetre I, where we had set aside the 1996 Finding and Award. He did not think that he had the authority to reinstate that award, reasoning that it was a matter to be determined by the CRB. Dec. 14, 1998 Transcript, 13.

Essentially, this is a straightforward issue. The trial commissioner unequivocally restricted his decision below to the narrow topic he was presented with on remand, and ultimately reached the same conclusion that he did in 1996. We therefore agree with the claimant that the trier’s original award should be deemed reinstated in its entirety, supplemented by the trier’s December 14, 1998 decision. None of the substantive findings have changed since 1996, and no new evidence has been admitted.

However, other matters still must be considered. In the respondent’s October 28, 1996 Reasons for Appeal and in its March 27, 1997 Appellant’s Brief, several issues were addressed that were not reached by this board in Vetre I because of the nature of the remand decision. We cannot presume that they have been abandoned. Unfortunately, two of the three members of the Vetre I review panel are not part of the panel on this appeal. It would be inappropriate for this review panel to address herein the issues that the respondent argued to a different CRB panel on May 23, 1997. Instead, considering the amount of time that has passed, and the importance of due process, the best solution is to give the respondent another opportunity to address the issues that it raised previously.

Therefore, we affirm the trier’s December 14, 1998 decision. With respect to the claimant’s appeal, we hold as follows: the respondent must be given the opportunity to show cause before this board why the trial commissioner’s October 8, 1996 Finding and Award should not be reinstated, limited to the issues that were raised in its initial appeal, but not addressed by the CRB panel that decided Vetre I.

Commissioners Stephen B. Delaney and Ernie R. Walker concur.

1 At oral argument, counsel for the claimant waived any objection it might have against the participation of Commissioner Walker, a former Assistant Attorney General, in the making of this decision. BACK TO TEXT

2 Section 52-146e(a) declares, “All communications and records as defined in section 52-146d shall be confidential and shall be subject to the provisions of sections 52-146d to 52-146j, inclusive. Except as provided in sections 52-146f to 52-146i, inclusive, no person may disclose or transmit any communications and records or the substance or any part or any resume thereof which identify a patient to any person, corporation or governmental agency without the consent of the patient or his authorized representative.” The “communications and records” enumerated in § 52-146d(2) are “oral and written communications and records thereof relating to diagnosis or treatment of a patient’s mental condition between the patient and a psychiatrist, or between a member of the patient’s family and a psychiatrist, or between any of such persons and a person participating under the supervision of a psychiatrist in the accomplishment of the objectives of diagnosis and treatment, wherever made, including communications and records which occur in or are prepared at a mental health facility.” BACK TO TEXT

3 This subsection states, “Communications or records may be disclosed in a civil proceeding in which the patient introduces his mental condition as an element of his claim or defense, or, after the patient’s death, when his condition is introduced by a party claiming or defending through or as a beneficiary of the patient and the court or judge finds that it is more important to the interests of justice that the communications be disclosed than that the relationship between patient and psychiatrist be protected.” BACK TO TEXT